A proxy is not a ballot
Q. A practice has continued for many years in our association that I have questioned. That is, the proxy given by one owner to another owner that designates who the owner wants the proxy holder to vote for in a board election, is counted as the ballot at the annual meeting. Is this correct?
A. No, this practice is not correct. A proxy is an agreement between an owner and another person that can designate how the owner wants the proxy holder to vote. However, the proxy is not a ballot. Rather, a ballot must be issued to the proxy holder at the annual meeting, and the ballot completed by the proxy holder in accordance with the instructions of the owner as described in the proxy. The ballot is used to tabulate the votes; the proxy is not.
I do appreciate that many associations do as your association has done with proxies. However, this opens the door to a successful challenge of an election.
Q. The board and management of our condominium association issued a document to all owners for this year's annual meeting that is called a Proxy/Ballot. The accompanying instructions provide the owner should either complete the proxy portion and give it to another person, or complete and mail the ballot portion if the owner cannot personally attend the annual meeting. This practice seems to contradict my understanding of the law. Please comment.
A. The many proxy questions can mean only one thing. It's annual meeting time in associations!
In general, an owner can vote in person at the annual meeting with a ballot issued to the owner at the annual meeting, or an owner can vote by a proxy given to another person and the other person would vote at the annual meeting with a ballot issued to the proxy holder at the annual meeting.
That said, the board of an Illinois condominium association can adopt rules allowing for voting by mail-in ballot, or by acceptable technological means, in lieu of proxies.
But the practice you describe that gives an owner the option of either completing the proxy portion of the document and giving it to another person who will attend the annual meeting, or completing and mailing a ballot if the owner cannot personally attend the annual meeting, is not consistent with the law. That is, in a condominium, an owner cannot be given the option of voting via a proxy or a via a mail-in ballot.
Q. Our condominium building is in need of very substantial repairs, and the cost of the work is going to have to be funded through a significant special assessment. I understand that a special assessment over a certain amount may be subject to an owner vote. Are there circumstances under which the board can levy a special assessment for repairs to the common elements without being subject to a potential vote of the unit owners?
A. Section 18.4(a)(8) of the Illinois Condominium Property Act provides that separate assessments for expenditures relating to emergencies or mandated by law may be adopted by the board of managers without being subject to unit owner approval, or the procedure whereby owners can request a vote if a special assessment exceeds a certain threshold.
The "emergency" exception would be applicable to raise funds if there is an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners. This conclusion is typically supported by the written opinion of an engineer or other expert.
The "mandated by law" exception would be applicable, for example, if the association receives a notice of building code violation and the association needs to raise funds to pay for necessary repairs to correct the violation.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.